EQUAL EMPLOYMENT COMMUNITY

EEOC

Presented by: Victoria Berahmandpour

HRM 59301/24/13

Overview

• EEOC Overview• Disparate Impact vs Disparate Treatment• The complaint procedure for

Disparate ImpactDisparate Treatment

• The defenses available to the company should a disparate impact claim and/or a disparate treatment claim be lodged against ZAB.

• Suggestion for avoiding potential EEOC claims and complaints

According to EEOC, “Responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

Their authority is to investigate charges of discrimination against employers who are covered by the law.

Their role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding.”

EEOC Overview

• Disparate Impact:

Occurs when employment practices causes a special person or group have a greater impact than others such as hiring, firing, sex.

• Disparate Treatment:

Occurs when an employer treat an individuals differently than others intentionally because of their race, sex, national origin, age, or disability.

Disparate Impact versus Disparate Treatment

• EEOC Laws

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin.

Title VII prohibits both “disparate treatment” and “disparate impact” discrimination.

EEOC Laws

EEOC investigate Disparate treatment cases as follows:

o Were people treat differently because of their race, color, religion, sex, national origin, and disability?

o Is there any evidence of discrimination?

o What is the employer’s reason for different treatment?

o Is there appropriate evidence shows that employer’s treat employee differently because of their race, color, sex, religion, and national origin?

EEOC LawsContinue

EEOC investigate Disparate Impact cases as follows:

o Does the employer practice disparate impact based of race, color, religion, sex, or national origin?

o If this is the case, can employer explain the procedure of job related and consistent with business necessity?\

o If employer can prove that it is related to job or business necessity, can employer change or challenging this for other group to avoid or minimize discriminatory alternative?

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• If there is any discrimination under title VII, Civil Rights Act of 1964, the procedure for complain are as follows:

I. File a charge of discrimination with EEOC within 180 days and for age discrimination 300 days by

oOnline Assessment SystemoFiling in personoPhoneoMail

EEO Complain

II. Meditation:

Within 10 days, EEOC send a copy of claim to employer and set up appointment for meditation, if both party accept.

III. Possible Dismissal:

If the EEOC does not have jurisdiction, or if your charge is untimely, we will close your charge quickly. We may also close your charge quickly if we decide that we probably will not be able to find discrimination. If your charge is dismissed, you will be notified.

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IV. Investigation

EEOC gather all information, documents, witnesses

to find any discrimination. After finishing the

investigation, they will send the notice.

V. Subpoena

If an employer refuses to cooperate with an EEOC

investigation, EEOC can issue an administrative

subpoena to obtain documents, testimony or gain

access to facilities.

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VI. Possible Action:

If EEOC haven’t found any violation, they will give notice of Right-to-Sue. This notice gives the right to sue against the employers.

In General, EEOC complains process can be in two different ways informal process and formal process.

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• Informal Complain Process

EEO Counseling

Discuss procedure, rights, and identify the problem

and find possible solution

ADR (Alternative Dispute Resolution) – Meditation

Open communication and save time and offer

settlements

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• Formal Complain process

Accept or dismiss issue, Investigation, Final agency decisions, Hearing, Appeal

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• Business Necessity

Management’s defense of an employment related

decision that it is based on genuine requirements

of the firm and is consistent with other such

decisions.

• Job Related

Job-Related is for the position in question and

consistent with business necessity.

Available Defense to Employers for disparate Impact

The elements to establish Business necessity are as follows:

1. The ultimate business goal which the employer seeks to achieve through the practice is essential to the business

2. The tasks for which the practice measures ability are essential to achievement of that ultimate business goal.

3. Workers selected for the positions in question must be able to perform the tasks.

4. The practice selected is necessary to measure the ability to perform those tasks.

Available Defense to Employers for disparate ImpactContinue

• BFOQ: Bona Fide Occupational Qualification

According to business dictionary:

Employment qualities or attributed of a prospective or

current employee that an employer is allowed to

consider under law for the purpose of hiring or

retention. The qualifications may include gender, age,

and national to the job requirements. In order to prove

that the qualifications are necessary, the company

must show that they critical to the success of the

activities to be carried out by that individual.

Available Defense to Employers for disparate Treatment

• Bona Fide occupational qualification (BFOQ) according to U.S. laws:

Requirement that an employee be of a certain religion, sex, or national origin where that is reasonably necessary to the organization’s normal operation. Specified by the 1964 Civil Rights Act

Available Defense to Employers for disparate TreatmentContinue

• Carefully written up-to-date polices for employment matter specially on employment application, job description, employment handouts.

• Carefully documented procedure especially for termination such as employee’s privacy act, reason for termination, review termination by senior manager.

• Documented all employment related action, and review their performance at least once a year.

Prevention of Complaints

• Train all managers for discrimination laws

• Knowledge all employees about any discrimination and laws to avoid wrong discrimination claim.

• Create atmosphere of open communication

• Be consistent

Prevention of ComplaintsContinue

• EEOC website http://www.eeoc.gov/eeoc/index.cfm

• WAGE women are getting even http://www.wageproject.org/files/ncdispimp.php

• Business Dictionary http://www.businessdictionary.com/definition

• The Business Necessity Defense in Disparate Impact Discrimination Cases by Susan Grover [William & Mary Law School] 1996 page 14

• Bona Fide Occupational Qualification (BFOQ) by Sree Rama Rao

November 5, 2009 http://

www.citeman.com/7595-bona-fide-occupational-qualification-bfoq.html

References